February

Lawyers Journal

On Dec. 22, 2010, the Supreme Judicial Court, in Morrissey
v. New England Deaconess Ass'n-Abundant Life Communities Inc., et
al.1 held that claims of private nuisance against
the government are subject to the Massachusetts Tort Claims Act,
G.L. c. 258. This is a landmark decision that will provide greater
protection for state and local governments by capping damages at
$100,000 and requiring the presentment of claims in writing within
two years of the claim.

In addition, municipalities will be subject to greater protection
through the exemptions applicable under the act, making it more
difficult for plaintiffs to bring a claim for nuisance against
governmental entities. In 1987, the Appeals Court had previously
held, in Asiala v. Fitchburg,2 that the act was
not applicable to a nuisance claim, the amounts of damages allowed
were unlimited, and no formal notice requirements or statutory
exemptions prevented such lawsuits.

The recent Morrissey decision overruled the 1987 Appeals
Court decision and held for the first time that nuisance claims
were subject to the act's notice provisions found in Section 4 of
Chapter 258. In addition to applying this new ruling retroactively,
the opinion held that since the work at issue was conducted under a
government-issued permit, liability was excluded under exemptions
found in Section 10 of the act for government permitting and
discretionary decisions by governmental entities.

Factual and procedural background

The case was decided on a motion to dismiss, so the facts
alleged in the complaint were accepted as true. The complaint
alleged that the land held in trust was negatively impacted by a
senior living development on abutting land which required road
widening of Route 2, authorized by the Massachusetts Highway
Department in 2007. The complaint sought damages and injunctive
relief from the commonwealth, and private parties, for mitigation
associated with the alleged nuisance caused by the road
alterations.

The commonwealth asserted that the claims involved the
"discretionary" decision to issue a permit for construction on
Route 2 and that the claims were barred by the exceptions to the
waiver of sovereign immunity set forth in G. L. c. 258, § 10 (b)
and (e), pertaining to a discretionary function and the issuance of
a permit. Moreover, the commonwealth noted that plaintiff had
failed to comply with the notice provisions of the act before
filing the complaint, as grounds for dismissal.

The Superior Court in Morrissey denied the motion to
dismiss the private nuisance claim, relying on the earlier Appeals
Court holding that prior to the enactment of Chapter 258, "it was
well established that a municipality was not immune from liability
if it created or maintained a private nuisance on its land which
caused injury to the real property of another."3

Justice Francis X. Spina, writing the Morrissey decision
after direct appellate review was granted, reviewed the history of
the Tort Claims Act, including the case history leading to its
enactment in 1978. The decision noted "[a] private nuisance is
actionable when a property owner creates, permits, or maintains a
condition or activity on [its] property that causes a substantial
and unreasonable interference with the use and enjoyment of the
property of another."4

Legal Precedent

In the earlier Asiala v. Fitchburg case, the Appeals
Court had stated that "[d]ecades before the enactment of the act,
it was well established that a municipality was not immune from
liability if it created or maintained a private nuisance on its
land which caused injury to the real property of another."
Therefore, "it was not necessary to abolish immunity with respect
to private nuisance claims [because] [t]he removal of the doctrine
had already been accomplished by judicial
decision."5

However, the SJC decision in Morrissey held that language
in the act expressed "a clear legislative intent to abolish the
common law doctrine of governmental immunity, and to replace it
with a comprehensive statutory scheme that would govern the
liability of public employers in tort actions, including those for
private nuisance" in line with the history and purpose discussed in
the opinion.

The language relied on stated: "The provisions of this act shall
be construed liberally for the accomplishment of the purposes
thereof but shall not be construed to supersede or repeal [G. L. c.
81, § 18, and G. L. c. 84, §§ 15-25]. Any other provision of law
inconsistent with any other provisions of this chapter shall not
apply."6

The Court also indicated that its decision was supported by the
plain language of section 2 of the act, which states that a public
employer shall be liable for the loss of property caused not only
by the "negligent" act but also by the "wrongful" act of "any
public employee while acting within the scope of his office or
employment."7 "Because the Legislature has commanded
that we are to construe liberally the provisions of the act, see
St. 1978, c. 512, § 18, we conclude that a 'wrongful act' would
encompass a private nuisance."

The opinion also applied its ruling retroactively, stating that
retroactive application "furthers the purpose of having a
consistent and clearly defined body of law, and we envision no
specific hardships or inequities that would likely follow."

Notice provisions

Since the act was applicable to the claim of nuisance, the
plaintiff's failure to comply with the notice provisions was
grounds for dismissal. Pursuant to section 4 of the act, a civil
action cannot be instituted against a public employer unless the
claimant gives notice of his claim in writing to the executive
officer of the public employer within two years after the date upon
which the cause of action arose.8

Exceptions to waiver of immunity

Not only had the plaintiff failed to comply with the notice
provisions, but the lawsuit was barred because the complaint sought
relief from activities which the act exempted from the waiver of
immunity; permitting and discretionary functions. As to the
permitting, the harm was allegedly caused by work which was subject
to the issuance of a permitting process to make improvements to
Route 2.

Specifically, although this work "caused noise, dust, vibrations,
and other damage to the Trust property" which was alleged to have
interfered with the use and enjoyment of it, plaintiff's complaint
could be traced back to "one or more of the types of events or
activities delineated in § 10 (e)." Section 10(e) of the act
exempts from the waiver of immunity any claim based upon "the
issuance, denial, suspension or revocation or failure or refusal to
issue, deny, suspend or revoke any permit, license, certificate,
approval, order or similar authorization."

As to "discretionary" decisions, under the act, any claim based
upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a public
employer or public employee, acting within the scope of his office
or employment, whether or not the discretion involved is abused, is
also exempt from the waiver of immunity.9

Potential impact on future claims

While the decision to include nuisance claims under the act is
likely to allow more claims to be exempt as discretionary
functions, the exemption is narrow, providing immunity only for
discretionary conduct that involves policy making or planning, this
decision is likely to allow many private nuisance claims against
the government to be barred by the "discretionary function"
exemption.

As the Morrissey decision notes, it is necessary to
engage in a case-by-case determination of what is a discretionary
function under section 10 (b) and what is not.10 In
Morrissey, the commonwealth's decision to issue a permit
was a discretionary function based on policy and planning
considerations regarding roadway improvements, and therefore was
barred by section 10 (b).11

Other cases, not brought under "nuisance" theories but involving
road design issues, have been found to be functions which involve
the implementation and execution of governmental policy or planning
would receive governmental immunity.

In Patrazza v. Commonwealth,12 immunity was
provided where the design of a highway guardrail and the policy
implementing its use were encompassed within discretionary function
exception of section 10 (b). Similarly, in Drivas v.
Barnett,13 the town was immune where the design of
an intersection was encompassed within the discretionary function
exception of section 10(b).

Outside of the road construction area, another case applying the
discretionary function exemption is (Barnett v. Lynn,14
where immunity was conferred for the city's decision not to erect a
fence on city property to prevent sledding based on an allocation
of limited resources and, and as such, was deemed a discretionary
function. Another discretionary decision was found exempt in
Pina v. Commonwealth where state employees who allegedly
were negligent in evaluating and processing a claim for Social
Security disability insurance benefits, resulting in an erroneous
determination that a certain recipient of benefits had ceased to be
disabled, giving rise to that individual physical and emotional
distress and economic loss.15

Conversely, in Harry Stoller & Co., Inc. v. City of
Lowell, the SJC held that the fire fighters' use of discretion
whether or not to use a building's sprinkler system does not
involve policy and planning considerations and therefore does not
receive governmental immunity.16 Another case noting the
limits of the discretionary function exemption is found in
Dobos v Driscoll,17 where a state trooper was
found to have verbally abused and arrested a motorist in connection
with a minor traffic violation.

The claim against the commonwealth in Dobos sounded in
negligence by the trooper's supervisor and the commonwealth alleged
the supervisor's decisions were exempt as discretionary. The SJC
declined to apply the exemption with reasoning that characterized
the supervisors' alleged injury-producing conduct as follows: The
reinstatement of Driscoll to highway patrol despite the
supervisors' knowledge (actual or constructive) of ample reasons
for not doing so, the failure to follow established procedures
resulting in failing to impose probationary conditions on
Driscoll's return to highway patrol that would have assured his
removal prior to his encounter with the plaintiffs, the failure to
monitor Driscoll's activities, and the failure to remove Driscoll,
or to investigate his record, as various substantiated allegations
of his misconduct arose.18

The Pina decision noted the inquiries relevant as to
whether the act of a public employee involved discretionary
conduct: "Was the injury-producing conduct an integral part of
governmental policymaking or planning? Might the imposition of
tort liability jeopardize the quality and efficiency of the
governmental process? Could a judge or jury review the conduct in
question without usurping the power and responsibility of the
legislative or executive branches? Is there an alternate remedy
available to the injured individual other than an action for
damages?"19

In Sena v. Commonwealth, the SJC recognizes that Chapter
258 follows the Federal Torts Claim Act.20 Massachusetts
courts have found Federal opinions construing the Federal Act
helpful when interpreting discretionary function exemptions set
forth in Chapter 258 Section 10(b) of the Massachusetts Torts Claim
Act.21 Specifically, Sena notes that the court
in Harry Stoller & Co., Inc. v. City of
Lowell,22 adopts a two-prong test applied by United
States Supreme Court in the case of Berkovitz v. United
States,23 for determining whether specific conduct
falls within the discretionary function exemption.

Conclusion

While the inclusion of private nuisance as subject to the
provisions of the Tort Claims Act expands the scope of immunity
protection compared to past interpretations, the Morrissey
decision is similar to other cases where courts have exempted road
design issues as discretionary functions. The chapter 258 notice
provisions are a trap for the unwary who fail to comply, and
Morrissey is a good example of why a chapter 258 demand
letter should be sent on virtually any type of claim involving the
government.

Overall, the decision appears to carry out the balanced purpose
and intent of the Legislature in abolishing common law immunity,
while creating a comprehensive scheme to maintain limits to
liability.

Edward M. Pikula is city solicitor for the City of
Springfield.

Christine M. Pikula is a student at Western New England College of
Law.